The Committee on Finance moves to amend the bill on page four,
following the enacting clause, by striking out the remainder of the
bill and inserting in lieu thereof the following:

“That §16-1-2 and §16-1-9a of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that said code be amended by
adding thereto two new sections, designated §16-1-9c and §16-1-9d;
that §22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8
of said code be amended and reenacted; and that said code be
amended by adding thereto a new article, designated §22-30-1,
§22-30-2, §22-30-3, §22-30-4, §22-30-5, §22-30-6, §22-30-7,
§22-30-8, §22-30-9, §22-30-10, §22-30-11, §22-30-12, §22-30-13,
§22-30-14, §22-30-15, §22-30-16, §22-30-17, §22-30-18, §22-30-19,
§22-30-20, §22-30-21, §22-30-22, §22-30-23, §22-30-24 and §22-30-25; and that said code be amended and reenacted by adding thereto
a new article, designated §22-31-1, §22-31-2, §22-31-3, §22-31-4,
§22-31-5, §22-31-6, §22-31-7, §22-31-8, §22-31-9, §22-31-10,
§22-31-11 and §22-31-12, all to read as follows:

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

§16-1-2. Definitions.

Unless the context in which used clearly requires a different

meaning, As used in this article:

(a)(1) “Basic public health services” means those services
that are necessary to protect the health of the public. The three
areas of basic public health services are communicable and
reportable disease prevention and control, community health
promotion and environmental health protection;

(b)(2) “Bureau” means the Bureau for Public Health in the
department; of health and human resources;

(c)(3) “Combined local board of health” meansis one form of
organization for a local board of health and means a board of
health serving any two or more counties or any county or counties
and one or more municipalities within or partially within the
county or counties;

(d)(4) “Commissioner” means the commissioner of the bureau,
for public health, who is the state health officer;

(e)(5) “County board of health” meansis one form of
organization for a local board of health and means a local board of
health serving a single county;

(f)(6) “Department” means the West Virginia Department of
Health and Human Resources;

(g)(7) “Director” or “director of health” means the state
health officer. Administratively within the department, the bureau
for public health through its commissioner carries out the public
health functions of the department, unless otherwise assigned by
the secretary;

(h)(8) “Essential public health services” means the core
public health activities necessary to promote health and prevent
disease, injury and disability for the citizens of the state. The
services include:

(9)(I) Evaluating the effectiveness, accessibility and
quality of personal and population-based health services; and

(10)(J) Researching for new insights and innovative solutions
to health problems;

(i)(9) “Licensing boards” means those boards charged with
regulating an occupation, business or profession and on which the
commissioner serves as a member;

(j)(10) “Local board of health,” “local board” or “board”
means a board of health serving one or more counties or one or more
municipalities or a combination thereof;

(k)(11) “Local health department” means the staff of the
local board of health;

(l)(12) “Local health officer” means the individual physician
with a current West Virginia license to practice medicine who
supervises and directs the activities, of the local health
department services, staff and facilities of the local health
department and is appointed by the local board of health with
approval by the commissioner;

(m)(13) “Municipal board of health” ismeans one form of
organization for a local board of health and means a board of
health serving a single municipality;

(n)(14) “Performance-based standards” means generally
accepted, objective standards such as rules or guidelines against
which public health performance can be measured;

(15) “Potential source of significant contamination” means a
facility or activity that store, uses or produces substances or
compounds with potential for significant contaminating impact if
released into the source water of a public water supply.

(o)(16) “Program plan” or “plan of operation” means the
annual plan for each local board of health that must be submitted
to the commissioner for approval;

(17) “Public groundwater supply source” means a primary source
of water supply for a public water system which is directly drawn
from a well, underground stream, underground reservoir, underground
mine or other primary source of water supplies which is found
underneath the surface of the state.

(18) “Public surface water supply source” means a primary
source of water supply for a public water system which is directly
drawn from rivers, streams, lakes, ponds, impoundments or other
primary sources of water supplies which are found on the surface of
the state.

(19) “Public surface water influenced groundwater supply
source” means a source of water supply for a public water system
which is directly drawn from an underground well, underground river
or stream, underground reservoir or underground mine, and the
quantity and quality of the water in that underground supply source
is heavily influenced, directly or indirectly, by the quantity and
quality of surface water in the immediate area.

(s)(20) “Public water system” means;

(A) Any water supply or system which regularly supplies or
offers to supply water for human consumption through pipes or other
constructed conveyances, if serving at least an average of
twenty-five individuals per day for at least sixty days per year,
or which has at least fifteen service connections, and shall
include:

(1)(i) Any collection, treatment, storage and distribution
facilities under the control of the owner or operator of the system
and used primarily in connection with the system; and

(2)(ii) Any collection or pretreatment storage facilities not
under such control which are used primarily in connection with the
system.

(B) A public water system does not include a system which
meets all of the following conditions:

(1)(i)Which Consists only of distribution and storage
facilities (and does not have any collection and treatment
facilities);

(2)(ii)Which Obtains all of its water from, but is not owned
or operated by, a public water system which otherwise meets the
definition;

(3)(iii)Which Does not sell water to any person; and

(4)(iv)Which Is not a carrier conveying passengers in
interstate commerce.

(21) “Public water utility” means a public water system which
is regulated by the West Virginia Public Service Commission
pursuant to the provisions of chapter twenty-four of this code.

(q)(22) “Secretary” means the secretary of the state
department; of health and human resources;

(r)(23) “Service area” means the territorial jurisdiction of
a local board of health;

(s)(24) “State Advisory Council on Public Health” ismeans the
advisory body charged by this article with providing advice to the
commissioner with respect to the provision of adequate public
health services for all areas in the state;

(t)(25) “State Board of Health” means and refers to, the
secretary, notwithstanding any other provision of this code to the
contrary, whenever and wherever in this code there is a reference
to the state board of health.

(26) “Zone of critical concern” for a public surface water
supply is a corridor along streams within a watershed that warrant
more detailed scrutiny due to its proximity to the surface water
intake and the intake’s susceptibility to potential contaminants
within that corridor. The zone of critical concern is determined
using a mathematical model that accounts for stream flows, gradient
and area topography. The length of the zone of critical concern is
based on a five-hour time of travel of water in the streams to the
water intake, plus an additional 1/4 mile below the water intake.
The width of the zone of critical concern is 1,000 feet measured
horizontally from each bank of the principal stream and 500 feet
measured horizontally from each bank of the tributaries draining
into the principal stream.

§16-1-9a. Regulation of public water systems.

(a) A public water system is any water supply or system that
regularly supplies or offers to supply water for human consumption
through pipes or other constructed conveyances, if serving at least
an average of twenty-five individuals per day for at least sixty
days per year, or which has at least fifteen service connections,
and shall include:

(1) Any collection, treatment, storage and distribution
facilities under the control of the owner or operator of such
system and used primarily in connection with such system; and

(2) Any collection or pretreatment storage facilities not
under such control which are used primarily in connection with such
system.

A public water system does not include a system that meets all
of the following conditions:

(1) Consists only of distribution and storage facilities (and
does not have any collection and treatment facilities);

(2) Obtains all of its water from, but is not owned or
operated by, a public water system that otherwise meets the
definition;

(3) Does not sell water to any person; and

(4) Is not a carrier conveying passengers in interstate
commerce.

(a) The commissioner shall regulate public water systems as
prescribed in this section.

(1) The maximum contaminant levels to which all public water
systems shall conform in order to prevent adverse effects on the
health of individuals;

and, if the secretary considers appropriate,

(2) Treatment techniques that reduce the contaminant or
contaminants to a level which will not adversely affect the health
of the consumer; The rule shall contain

(3) Provisions to protect and prevent contamination of
wellheads and well fields used by public water supplies so that
contaminants do not reach a level that would adversely affect the
health of the consumer;

(C) Public notification by a public water system on being
granted a variance or exemption or upon failure to comply with
specific requirements of this section and regulations promulgated
under this section;

(D) Record keeping;

(E) Laboratory certification; and

(F)as well as Procedures and conditions for granting
variances and exemptions to public water systems from state public
water systems regulations.

(3) In addition, The secretary commissioner shall establish by
legislative rule, in accordance with article three, chapter
twenty-nine-a of this code,

(5) Requirements covering the production and distribution of
bottled drinking water; and may by legislative rule, in accordance with article three, chapter twenty-nine-a of this code, establish

(6) Requirements governing the taste, odor, appearance and
other consumer acceptability parameters of drinking water; and

(7) Any other requirement the commissioner finds necessary to
effectuate the provisions of this article.

(c) Authorized representatives of the bureauThe commissioner
or his or her authorized representatives or designeeshave right of
entry tomay enter any part of a public water system, whether or
not the system is in violation of a legal requirement, for the
purpose of inspecting, sampling or testing and shall be furnished
records or information reasonably required for a complete
inspection.

(d)The right of entry includes the right for a bureau
representative or a designee of a bureau representative toThe
commissioner, his or her authorized representative or designee may
conduct an evaluation necessary to assure the public water system
meets federal safe drinking water requirements. The public water
system shall provide a written response to the bureaucommissioner
within forty-fivethirty days of receipt of the evaluation by the
public water system, addressing corrective actions to be taken as
a result of the evaluation.

(d)(e)(1) Any individual partnership, association, syndicate,
company, firm, trust, corporation, government corporation,
institution, department, division, bureau, agency, federal agency
or any entity recognized by law who violates any provision of this
sectionarticle, or any of the rules or orders issued pursuant to
this sectionarticle, is guilty of a misdemeanor and, upon
conviction thereof,shall be fined not less than $50 is liable for
a civil penalty not less than $1,000 nor more than $500$5,000.and
Each day’s violation shall constitute a separate offense. The
commissioner or his or her authorized representative may also seek
injunctive relief in the circuit court of the county in which all
or part of the public water system is situated for threatened or
continuing violations.

(2) For a willful violation of a provision of this sectionarticle, or of any of the rules or orders issued under this sectionarticle, for which a penalty is not otherwise provided under
subdivision (3) of this subsection, an individual partnership,
association, syndicate, company, firm, trust, corporation,
government corporation, institution, department, division, bureau,
agency, federal agency or entity, recognized by law, upon a finding
of a willful violation by the circuit court of the county in which
the violation occurs, shall be subject to a civil penalty of not
more than $5,000$10,000 and each day’s violation shall be grounds
for a separate penalty.

(3) The commissioner or his or her authorized representative
shall have authority to assess administrative penalties and
initiate any proceedings necessary for the enforcement of drinking
water rules. The administrative penalty for a violation of any
drinking water rule is a minimum of $1,000 per day per violation
and a maximum of $2,500 per day per violation for systems serving
more than ten thousand persons, a minimum of $250 per day per
violation and a maximum of $500 per day per violation for systems
serving over three thousand three hundred persons up to and
including ten thousand persons, a minimum of $100 per day per
violation and a maximum of $200 per day per violation for systems
serving three thousand three hundred or fewer persons and each
day’s violation shall be grounds for a separate penalty.

(3)Civil penalties are payable to the commissioner. All
moneys collected under this section shall be deposited into a
restricted account known as the “Safe Drinking Water penalty Fund”.
previously created in the office of the state Treasurer. All money
deposited into the fund shall be used by the commissioner to
provide technical assistance to public water systems.

(f) The commissioner, or his or her authorized representative,
may also seek injunctive relief in the circuit court of the county
in which all or part of the public water system is located for
threatened or continuing violations.

§16-1-9c. Required update or completion of source water protection
plans.

(a) On or before July 1, 2016, each existing public water
utility which draws and treats water from a surface water supply
source or a surface water influenced groundwater supply source
shall submit to the commissioner an updated or completed source
water protection plan for each of its public water system plants
with such intakes, to protect its public water supplies from
contamination. Every effort shall be made to inform and engage the
public, local governments, local emergency planners, local health
departments and affected residents at all levels of the development
of the protection plan.

(b) The completed or updated plan for each affected plant, at
a minimum, shall include the following:

(1) A contingency plan that documents each public water
utility’s planned response to contamination of its public surface
water supply source or its public surface water influenced
groundwater supply source;

(2) An examination and analysis of the public watersystem’s
ability to isolate or divert contaminated waters from its surface
water intake or groundwater supply, and the amount of raw water
storage capacity for the public water system’s plant;

(3) An examination and analysis of the public water system’s
existing ability to switch to an alternative water source or intake
in the event of contamination of its primary water source;

(4) An analysis and examination of the public water system’s
existing ability to close its water intake in the event the system
is advised that its primary water source has become contaminated
due to a spill or release into a stream, and the duration of time
it can keep that water intake closed without creating a public
health emergency;

(5) The following operational information for each plant
receiving water supplies from a surface water source;

(A) The average number of hours the plant operates each day,
and the maximum and minimum number of hours of operation in one day
at that plant during the past year; and

(B) The average quantities of water treated and produced by
the plant per day, and the maximum and minimum quantities of water
treated and produced at that plant in one day during the past year;

(6) An analysis and examination of the public water system’s
existing available storage capacity on its system, how its
available storage capacity compares to the public water system’s
normal daily usage, and whether the public water system’s existing
available storage capacity can be effectively utilized to minimize
the threat of contamination to its system;

(7) The calculated level of unaccounted for water experienced
by the public water system for each surface water intake,
determined by comparing the measured quantities of water which are
actually received and used by customers served by that water plant
to the total quantities of water treated at the water plant over
the past year. If the calculated ratio of those two figures is less
than 85%, the public water system is to describe all of the
measures it is actively taking to reduce the level of water loss
experienced on its system;

(8) A list of the potential sources of significant
contamination contained within the zone of critical concern as
provided by the Department of Environmental Protection, the Bureau
for Public Health and the Division of Homeland Security and
Emergency Management. The exact location of the contaminants
within the zone of critical concern is not subject to public
disclosure in response to a Freedom of Information Act request
under article one, chapter twenty-nine-b of this code. However,
the location, characteristics and approximate quantities of
potential sources of significant contamination within the zone of
critical concern shall be made known to one or more designees of
the public water utility, and shall be maintained in a confidential
manner by the public water utility. In the event of a chemical
spill, release or related emergency, information pertaining to any
spill or release of contaminant shall be immediately disseminated
to any emergency responders responding to the site of a spill or
release, and the general public shall be promptly notified in the
event of a chemical spill, release or related emergency.

(9) If the public water utility’s water supply plant is served
by a single-source intaketo a surface water source of supply or a
surface water influenced source of supply, the submitted plan shall
also include an examination and analysis of the technical and
economic feasibility of each of the following options to provide
continued safe and reliable public water service in the event its
primary source of supply is detrimentally affected by
contamination, release, spill event or other reason;

(A)Constructing or establishing a secondary or backup intake
which would draw water supplies from a substantially different
location or water source;

(B) Constructing additional raw water storage capacity and/or
treated water storage capacity, to provide at least two days of
system storage, based on the plant’s maximum level of production
experienced within the past year;

(C) Creating or constructing interconnections between the
public water system with other plants on the public water utility
system or another public water system, to allow the public water
utility to receive its water from a different source of supply
during a period its primary water supply becomes unavailable or
unreliable due to contamination, release, spill event or other
circumstance;

(D) Any other alternative which is available to the public
water utility to secure safe and reliable alternative supplies
during a period its primary source of supply is unavailable or
negatively impacted for an extended period; and

(E) If one or more alternatives set forth in paragraphs (A)
through (D) is determined to be technologically or economically
feasible, the public water utility shall submit an analysis of the
comparative costs, risks and benefits of implementing each of the
described alternatives;

(10) A management plan that identifies specific activities
that will be pursued by the public water utility, in cooperation
and in concert with the bureau for public health, local health
departments, local emergency responders, local emergency planning
committee, and other state, county or local agencies and
organizations to protect its source water supply from
contamination, including but not limited to notification to and
coordination with state and local government agencies whenever the
use of its water supply is inadvisable or impaired, to conduct
periodic surveys of the system, the adoption of best management
practices, the purchase of property or development rights,
conducting public education or the adoption of other management
techniques recommended by the commissioner or included in the
source water protection plan;

(11) A communications plan that documents the manner in which
the public water utility, working in concert with state and local
emergency response agencies, shall notify the local health agencies
and the public of the initial spill or contamination event and
provide updated information related to any contamination or
impairment of the source water supply or the system’s drinking
water supply, with an initial notification to the public to occur
in any event no later than thirty minutes after the public water
system becomes aware of the spill, release or potential
contamination of the public water system;

(12) A complete and comprehensive list of the potential
sources of significant contamination contained within the zone of
critical concern, based upon information which is directly provided
or can otherwise be requested and obtained from the Department of
Environmental Protection, the Bureau for Public Health, the
Division of Homeland Security and Emergency Management, and other
resources; and

(13) An examination of the technical and economic feasibility
of implementing an early warning monitoring system.

(c) Any public water utility’s public water systemwith a
primary surface water source of supply or a surface water
influenced groundwater source of supply that comes into existence
on or after the effective date of this article shall submit prior
to the commencement of its operations a source water protection
plan satisfying the requirements of subsection (b) of this section.

(d) The commissioner shall review a plan submitted pursuant to
this section and provide a copy to the Secretary of the Department
of Environmental Protection. Thereafter, within one hundred eighty
days of receiving a plan for approval, the commissioner may
approve, reject, or modify the plan as may be necessary and
reasonable to satisfy the purposes of this article. The
commissioner shall consult with the local public health officer and
conduct at least one public hearing when reviewing the plan.
Failure by a public water system to comply with a plan approved
pursuant to this section is a violation of this article.

(e) The commissioner may request a public water utility to
conduct one or more studies to determine the actual risk and
consequences related to any potential source of significant
contamination identified by the plan, or as otherwise made known to
the commissioner.

(f) Any public water utility required to file a complete or
updated plan in accordance with the provisions of this section
shall submit an updated source water protection plan at least every
three years or when there is a substantial change in the potential
sources of significant contamination within the identified zone of
critical concern.

(g) Any public water utility required to file a complete or
updated plan in accordance with the provisions of this section
shall review any source water protection plan it may currently have
on file with the bureau and update it to ensure it conforms with
the requirements of subsection (b) of this section on or before
July 1, 2016.

(h) The commissioner’s authority in reviewing and monitoring
compliance with a source water protection plan may be transferred
by the bureau to a nationally accredited local board of public
health.

§16-1-9d. Wellhead and Source Water Protection Grant Program.

(a) The commissioner shall continue the Wellhead and Source
Water Protection Grant Program.

(b) The fund heretofore created to provide funds for the
Wellhead and Source Water Protection Grant Program is continued in
the state treasury and shall be known as the “Wellhead and Source
Water Protection Grant Fund.” The fund shall be administered by
the commissioner and shall consist of all moneys made available for
the program from any source, including but not limited to all
fees, civil penalties and assessed costs, all gifts, grants,
bequests or transfers from any source, any moneys that may be
appropriated and designated for the program by the Legislature, and
all interest or other return earned from investment of the fund.
Expenditures from the fund shall be for the purposes set forth in
this article to provide water source protection pursuant to the
program and are not authorized from collections but are to be made
only in accordance with appropriation by the Legislature and in
accordance with the provisions of article three, chapter twelve of
this code and upon the fulfillment of the provisions set forth in
article two, chapter eleven-b of this code: Provided, That for the
fiscal years ending June 30, 2014 and 2015, expenditures are
authorized from collections rather than pursuant to an explicit
appropriation by the Legislature. Any balance, including accrued
interest and other returns, remaining in the fund at the end of
each fiscal year shall not revert to the general revenue fund but
shall remain in the fund and be expended as provided by this
section.

(c) In prospectively awarding any grants under the Wellhead
and Source Water Protection Grant Program, the commissioner shall
prioritize those public water systems where there is the highest
probability of contamination of the water source based on the
source water assessment report or the source water protection plans
which were previously performed. Priority shall also be extended
to publicly owned public water systems over privately owned public
water systems.

(d) The commissioner, or his or her designee, shall apply for
and diligently pursue all available federal funds to help offset
the cost of completing source water protection plans by the
deadlines established in section nine-c of this article.

(e) The commissioner may receive any gift, federal grant,
other grant, donation or bequest and receive income and other funds
or appropriations to contribute to the Wellhead and Source Water
Protection Plan Grant Program.

CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 26. WATER RESOURCES PROTECTION AND MANAGEMENT ACT.

§22-26-2. Definitions.

For purposes of this article: the following words have the
meanings assigned unless the context indicates otherwise

(a)(1) “Baseline average” means the average amount of water
withdrawn by a large quantity user over a representative historical
time period as defined by the secretary.

(b)(2) “Beneficial use” means uses that include, but are not
limited to, public or private water supplies, agriculture, tourism,
commercial, industrial, coal, oil and gas and other mineral
extraction, preservation of fish and wildlife habitat, maintenance
of waste assimilation, recreation, navigation and preservation of
cultural values.

(c)(3) “Commercial well” means a well that serves small
businesses and facilities in which water is the prime ingredient of
the service rendered, including water wells drilled to support
horizontal well operations.

(d)(4) “Community water system” means a public water system
that pipes water for human consumption to at least fifteen service
connections used by year-round residents or one that regularly
serves at least twenty-five residents.

(e)(5) “Consumptive withdrawal” means any withdrawal of water
which returns less water to the water body than is withdrawn.

(6) “Department” means the West Virginia Department of
Environmental Protection.

(f)(7) “Farm use” means irrigation of any land used for
general farming, forage, aquaculture, pasture, orchards, nurseries,
the provision of water supply for farm animals, poultry farming or
any other activity conducted in the course of a farming operation.

(g)(8) “Industrial well” means a well used exclusively for
nonpotable purposes, includingin industrial processing, fire
protection, washing, packing or manufacturing of a product
excluding food and beverages, or other nonpotable uses.

(h)(9) “Interbasin transfer” means the permanent removal of
water from the watershed from which it is withdrawn.

(I)(10) “Large-quantity user” means any person who withdraws
over seventhree hundred fifty thousand gallons of water in aanycalendar monththirty-day period from the state’s waters and any
person who bottles water for resale regardless of quantity
withdrawn. “Large-quantity user” excludes farm use, including
watering livestock or poultry on a farm, though farms may
voluntarily report water withdrawals to assist with the accuracy of
the survey.

(j)(11) “Maximum potential” means the maximum designed
capacity of a facility to withdraw water under its physical and
operational design.

(k)(12) “Noncommunity nontransient water system” means a
public water system that serves at least twenty-five of the same
persons over six months per year.

(l)(13) “Nonconsumptive withdrawal” means any withdrawal of
water which is not a consumptive withdrawal as defined in this
section.

(m)(14) “Person”, “persons” or “people” means an individual,
public and private business or industry, public or private water
service and governmental entity.

(n)(15) “Secretary” means the Secretary of the Department of
Environmental Protection or his or her designee.

(o)(16) “Transient water system” means a public water system
that serves at least twenty-five transient people at least sixty
days a year.”

(p)(17) “Test well” means a well that is used to obtain
information on groundwater quantity, quality, aquifer
characteristics and availability of production water supply for
manufacturing, commercial and industrial facilities.

(q)(18) “Water resources”, “water” or “waters” means any and
all water on or beneath the surface of the ground, whether
percolating, standing, diffused or flowing, wholly or partially
within this state, or bordering this state and within its
jurisdiction and includes, without limiting the generality of the
foregoing, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands: Provided, That farm ponds, industrial
settling basins and ponds and waste treatment facilities are
excluded from the waters of the state.

(r)(19) “Watershed” means a hydrologic unit utilized by the
United States Department of Interior’s geological survey, adopted
in 1974, as a framework for detailed water and related
land-resources planning.

(s)(20) “Withdrawal” means the removal or capture of water
from water resources of the state regardless of whether it is
consumptive or nonconsumptive: Provided, That water encountered
during coal, oil, gas, water well drilling and initial testing of
water wells, or other mineral extraction and diverted, but not used
for any purpose and not a factor in low-flow conditions for any
surface water or groundwater, is not deemed a withdrawal.

(a) The waters of the State of West Virginia are hereby
claimed as valuable public natural resources held by the state for
the use and benefit of its citizens. The state shall manage the
quantity ofand protect its waters effectively for present and
future use and enjoyment and for the protection of the environment.
Therefore, it is necessary for the state to determine the nature
and extent of its water resources, the quantity of water being
withdrawn or otherwise used and the nature of the withdrawals or
other uses: Provided, That no provisions of this article may be
construed to amend or limit any other rights and remedies created
by statute or common law in existence on the date of the enactment
of this article.

(b) The secretary shall conduct an ongoing water resources
survey of consumptive and nonconsumptive surface water and
groundwater withdrawals by large quantity users in this state. The
secretary shall determine the form and format of the information
submitted, including the use of electronic submissions. The
secretary shall establish and maintain a statewide registration
program to monitor large quantity users of water resources. of this
state beginning in 2006.

(c) Large-quantity users, except those who purchase water from
a public or private water utility or other service that is
reporting its total withdrawal, shall register with the department
of Environmental Protection and provide all requested survey
information regarding withdrawals of the water resources. Multiple
withdrawals from state water resources that are made or controlled
by a single person and used at one facility or location shall be
considered a single withdrawal of water. Water withdrawals for
self-supplied farm use and private households will be estimated.
Water utilities regulated by the Public Service Commission pursuant
to article two, chapter twenty-four of this code are exempted from
providing information on interbasin transfers to the extent those
transfers are necessary to provide water utility services within
the state.

(d) Except as provided in subsection (f) of this section,
large-quantity users who withdraw water from a West Virginia water
resource shall comply with the survey and registration requirements
of this article. Registration shall be maintained annually by
every large-quantity user by certifying, on forms and in a manner
prescribed by the secretary. that the amount withdrawn in the
previous calendar year varies by no more than ten percent from the
users’ baseline average or by certifying the change in usage.

(e) The secretary shall maintain a listing of all large-
quantity users and each user’s baseline average water withdrawal.

(f) The secretary shall make a good faith effort to obtain
survey and registration information from persons who are
withdrawing water from in-state water resources, but who are
located outside the state borders.

(g) All state agencies and local governmental entities that
have a regulatory, research, planning or other function relating to
water resources, including, but not limited to, the State
Geological and Economic Survey, the Division of Natural Resources,
the Public Service Commission, the Bureau for Public Health, the
Commissioner of the Department of Agriculture, the Division of
Homeland Security and Emergency Management, Marshall University,
West Virginia University and regional, county and municipal
planning authorities may enter into interagency agreements with the
secretary and shall cooperate by: (i) Providing information
relating to the water resources of the state; (ii) providing any
necessary assistance to the secretary in effectuating the purposes
of this article; and (iii) assisting in the development of a state
water resources management plan. The secretary shall determine the
form and format of the information submitted by these agencies.

(h) Persons required to participate in the survey and
registration shall provide any reasonably available information on
stream flow conditions that impact withdrawal rates.

(i) Persons required to participate in the survey and
registration shall provide the most accurate information available
on water withdrawal during seasonal conditions and future potential
maximum withdrawals or other information that the secretary
determines is necessary for the completion of the survey or
registration: Provided, That a coal-fired electric generating
facility shall also report the nominal design capacity of the
facility, which is the quantity of water withdrawn by the
facility’s intake pumps necessary to operate the facility during a
calendar day.

(j) The secretary shall, to the extent reliable water
withdrawal data is reasonably available from sources other than
persons required to provide data and participate in the survey and
registration, utilize that data to fulfill the requirements of this
section. If the data is not reasonably available to the secretary,
persons required to participate in the survey and registration are
required to provide the data. Altering locations of intakes and
discharge points that result in an impact to the withdrawal of the
water resources by an amount of ten percent or more from the
consecutive baseline average shall also be reported.

(k) The secretary shall report annually to the Joint
Legislative Oversight Commission on State Water Resources on the
survey results. The secretary shall also make a progress report
every three yearsannually on the developmentimplementation of the
State Water Resources Management Plan and any significant changes
that may have occurred since the survey reportState Water
Resources Management Plan was submitted in two thousand six 2013.
(l) In addition to any requirements for completion of the
survey established by the secretary, the survey must accurately
reflect both actual and maximum potential water withdrawal. Actual
withdrawal shall be established through metering, measuring or
alternative accepted scientific methods to obtain a reasonable
estimate or indirect calculation of actual use.

(m) The secretary shall make recommendations to the joint
Legislative Oversight Commission on Water Resources created in
section five of this article relating to the implementation of a
water quantity management strategy for the state or regions of the
state where the quantity of water resources are found to be
currently stressed or likely to be stressed due to emerging
beneficial or other uses, ecological conditions or other factors
requiring the development of a strategy for management of these
water resources.

(n) The secretary may propose rules pursuant to article three,
chapter twenty-nine-a of this code as necessary to implement the
survey registration or plan requirements of this article.

(o) The secretary is authorized to enter into cooperative
agreements with local, state and federal agencies and private
policy or research groups to obtain federal matching funds, conduct
research and analyze survey and registration data and other
agreements as may be necessary to carry out his or her duties under
this article.

(p) The department, the Division of Natural Resources, the
Division of Highways and the Conservation Agency (cooperating state
agencies) shall continue providing matching funds for the United
States Geological Survey’s (USGS) stream-gauging network to the
maximum extent practicable. Should a cooperating state agency
become unable to maintain its contribution level, it should notify
the USGS and the commission of its inability to continue funding
for the subsequent federal fiscal year by July 1, in order to allow
for the possible identification of alternative funding resources.

§22-26-5. Joint Legislative Oversight Commission on State Water
Resources.

(a) The President of the Senate and the Speaker of the House
of Delegates shall each designate five members of their respective
houses, at least one of whom shall be a member of the minority
party, to serve on a joint legislative oversight commission charged
with immediate and ongoing oversight of the water resources survey,
registration and development of a state water resources management
plan. This commission shall be known as the Joint Legislative
Oversight Commission on State Water Resources and shall regularly
investigate and monitor all matters relating to the water
resources, including the survey and plan.

(b) The expenses of the commission, including the cost of
conducting the survey and monitoring any subsequent strategy and
those incurred in the employment of legal, technical,
investigative, clerical, stenographic, advisory and other
personnel, are to be approved by the Joint Committee on Government
and Finance and paid from legislative appropriations.

§22-26-6. Mandatory survey and registration compliance.

(a) The water resources survey and subsequent registry will
provide critical information for protection of the state’s water
resources and, thus, mandatory compliance with the survey and
registry is necessary.

(b) All large-quantity users who withdraw water from a West
Virginia water resource shall complete the survey and register such
use with the department of Environmental Protection. Any person
who fails to complete the survey or register, provides false or
misleading information on the survey or registration, or fails to
provide other information as required by this article may be
subject to a civil administrative penalty not to exceed $5,000 to
be collected by the secretary consistent with the secretary’s
authority pursuant to this chapter. Every thirty days after the
initial imposition of the civil administrative penalty, another
penalty may be assessed if the information is not provided. The
secretary shall provide written notice of failure to comply with
this section thirty days prior to assessing the first
administrative penalty.

§22-26-7. Secretary authorized to log wells; collect data.

(a) In order to obtain important information about the state’s
surface and groundwater, the secretary is authorized to collect
scientific data on surface and groundwater and to enter into
agreements with local and state agencies, the federal government
and private entities to obtain this information.

(1)(b) Any person who installs a community water system,
noncommunity nontransient water system, transient water system,
commercial well, industrial or test well shall notify the secretary
of his or her intent to drill a water well no less than ten days
prior to commencement of drilling. The ten-day notice is the
responsibility of the owner, but may be given by the drilling
contractor.

(2)(c) The secretary has the authority to gather data,
including driller and geologist logs, run electric and other
remote-sensing logs and devices and perform physical
characteristics tests on nonresidential and multifamily water
wells.

(3)(d) The drilling contractor shall submit to the secretary
a copy of the well completion forms submitted to the Division of
HealthBureau for Public Health for a community water system,
noncommunity nontransient water system, transient water system,
commercial well, industrial or test well. The drilling contractor
shall also provide the well GPS location and depth to groundwater
on the well report submitted to the secretary.

(4)(e) Any person who fails to notify the secretary prior to
drilling a well or impedes collection of information by the
secretary under this section is in violation of the Water Resources
Protection and Management Act and is subject to the civil
administrative penalty authorized by section six of this article.

(5)(f) Any well contracted for construction by the secretary
for groundwater or geological testing must be constructed at a
minimum to well design standards as promulgated by the Division of
HealthBureau for Public Health. Any wells contracted for
construction by the secretary for groundwater or geological testing
that would at a later date be converted to a public use water well
must be constructed to comport to state public water design
standards.

§22-26-8. State Water Resources Management Plan; powers and duty
of secretary.

(a) The secretary of the Department of Environmental
Protection shall oversee the development of a State Water Resources
Management Plan to be completed no later than November 30, 2013.
The plan shall be reviewed and revised as needed after its initial
adoption. The plan shall be developed with the cooperation and
involvement of local and state agencies with regulatory, research
or other functions relating to water resources including, but not
limited to, those agencies and institutions of higher education set
forth in section three of this article and a representative of
large quantity users. The State Water Resources Management Plan
shall be developed utilizing the information obtained pursuant to
said section and any other relevant information available to the
secretary.

(b) The secretary shall develop definitions for use in the
State Water Resources Management Plan for terms that are defined
differently by various state and federal governmental entities as
well as other terms necessary for implementation of this article.

(c) The secretary shall continue to develop and obtain the
following:

(1) An inventory of the surface water resources of each region
of this state, including an identification of the boundaries of
significant watersheds and an estimate of the safe yield of such
sources for consumptive and nonconsumptive uses during periods of
normal conditions and drought.

(2) A listing of each consumptive or nonconsumptive withdrawal
by a large-quantity user, including the amount of water used,
location of the water resources, the nature of the use, location of
each intake and discharge point by longitude and latitude where
available and, if the use involves more than one watershed or
basin, the watersheds or basins involved and the amount
transferred.

(3) A plan for the development of the infrastructure necessary
to identify the groundwater resources of each region of this state,
including an identification of aquifers and groundwater basins and
an assessment of their safe yield, prime recharge areas, recharge
capacity, consumptive limits and relationship to stream base flows.

(4) After consulting with the appropriate state and federal
agencies, assess and project the existing and future nonconsumptive
use needs of the water resources required to serve areas with
important or unique natural, scenic, environmental or recreational
values of national, regional, local or statewide significance,
including national and state parks; designated wild, scenic and
recreational rivers; national and state wildlife refuges; and the
habitats of federal and state endangered or threatened species.

(5) Assessment and projection of existing and future
consumptive use demands.

(6) Identification of potential problems with water
availability or conflicts among water uses and users including, but
not limited to, the following:

(A) A discussion of any area of concern regarding historical
or current conditions that indicate a low-flow condition or where
a drought or flood has occurred or is likely to occur that
threatens the beneficial use of the surface water or groundwater in
the area; and

(B) Current or potential in-stream or off-stream uses that
contribute to or are likely to exacerbate natural low-flow
conditions to the detriment of the water resources.

(7) Establish criteria for designation of critical water
planning areas comprising any significant hydrologic unit where
existing or future demands exceed or threaten to exceed the safe
yield of available water resources.

(8) An assessment of the current and future capabilities of
public water supply agencies and private water supply companies to
provide an adequate quantity and quality of water to their service
areas.

(9) An assessment of flood plain and stormwater management
problems.

(10) Efforts to improve data collection, reporting and water
monitoring where prior reports have found deficiencies.

(11) A process for identifying projects and practices that are
being, or have been, implemented by water users that reduce the
amount of consumptive use, improve efficiency in water use, provide
for reuse and recycling of water, increase the supply or storage of
water or preserve or increase groundwater recharge and a
recommended process for providing appropriate positive recognition
of suchthose projects or practices in actions, programs, policies,
projects or management activities.

(12) An assessment of both structural and nonstructural
alternatives to address identified water availability problems,
adverse impacts on water uses or conflicts between water users,
including potential actions to develop additional or alternative
supplies, conservation measures and management techniques.

(13) A review and evaluation of statutes, rules, policies and
institutional arrangements for the development, conservation,
distribution and emergency management of water resources.

(14) A review and evaluation of water resources management
alternatives and recommended programs, policies, institutional
arrangements, projects and other provisions to meet the water
resources needs of each region and of this state.

(1) The interconnections and relationships between groundwater
and surface water as components of a single hydrologic resource.

(2) Regional or watershed water resources needs, objectives
and priorities.

(3) Federal, state and interstate water resource policies,
plans, objectives and priorities, including those identified in
statutes, rules, regulations, compacts, interstate agreements or
comprehensive plans adopted by federal and state agencies and
compact basin commissions.

(4) The needs and priorities reflected in comprehensive plans
and zoning ordinances adopted by a county or municipal government.

(5) The water quantity and quality necessary to support
reasonable and beneficial uses.

(6) A balancing and encouragement of multiple uses of water
resources, recognizing that all water resources of this state are
capable of serving multiple uses and human needs, including
multiple uses of water resources for reasonable and beneficial
uses.

(7) The distinctions between short-term and long-term
conditions, impacts, needs and solutions to ensure appropriate and
cost-effective responses to water resources issues.

(8) Application of the principle of equal and uniform
treatment of all water users that are similarly situated without
regard to established political boundaries.

(e) In November of each year,Each November, the secretary
shall report to the Joint Legislative Oversight Commission on State
Water Resources on the implementation of the State Water Resources
Management Plan. The report on the water resources plan shall
include benchmarks for achieving the plan’s goals and time frames
for meeting them.

(f) Upon adoption of the state Water Resources Management Plan
by the Legislature, the report requirements of this article shall
be superceded by the plan and subsequent reports shall be on the
survey results and the water resources plan. If the plan is not
adopted a detailed report discussing the provisions of this section
as well as progress reports on the development of the plan shall be
submitted every three years.The State Water Resources Management
Plan is adopted. Persons identified as large-quantity users prior
to the effective date of this subsection shall report actual
monthly water withdrawals, or monthly water withdrawals by a method
approved by the secretary, for the previous calendar year by March
31 of each succeeding year. Persons identified as large-quantity
users on or after the effective date of this subsection shall
submit their initial annual report no later than March 31, 2016,
and subsequent annual reports by March 31 of each year thereafter.

ARTICLE 30. THE ABOVEGROUND STORAGE TANK ACT.

§22-30-1. Short title.

This article may be known and cited as the Aboveground Storage
Tank Act.

§22-30-2. Legislative findings.

(a) The West Virginia Legislature finds the public policy of
the State of West Virginia is to protect and conserve the water
resources for the state and its citizens. The state’s water
resources are vital natural resources that are essential to
maintain, preserve and promote human health, quality of life and
economic vitality of the state.

(b) The West Virginia Legislature further finds the public
policy of the state is for clean, uncontaminated water to be made
available for its citizens who are dependent on clean water as a
basic need for survival, and who rely on the assurances from public
water systems and the government that the water is safe to consume.

(c) The West Virginia Legislature further finds it in the
public policy of the state that clean, uncontaminated water be
available to its businesses and industries that rely on water for
their economic survival, and the well-being of their employees.
These include hospitals and the medical industry, schools and
educational institutions, the food and hospitality industries, the
tourism industry, manufacturing, coal, natural gas and other
industries. Businesses and industries searching for places to
locate or relocate consider the quality of life for their employees
as well as the quality of the raw materials such as clean water.

(d) The Legislature further finds that large quantities of
fluids are stored in aboveground storage tanks within the state and
that emergency situations involving these fluids can and will arise
that may present a hazard to human health, safety, the water
resources, the environment and the economy of the state. The
Legislature further recognizes that some of these fluids have been
stored in aboveground storage tanks in a regulated manner
insufficient to protect human health, safety, water resources, the
environment and the economy of the state.

§22-30-3. Definitions.

For purposes of this article:

(1) “Aboveground storage tank” or “tank” means a device made
to contain an accumulation of more than 1320 gallons of fluids that
are liquids at standard temperature and pressure, which is
constructed primarily of non-carbon materials, including wood,
concrete, steel, plastic or fiberglass reinforced plastic, which
provide structural support, more than 90% capacity of which is
above the surface of the ground, but does not include any process
vessel. The term includes stationary devices which are permanently
affixed, and mobile devices which remain in one location on a
continuous basis for 60 or more days, and includes all ancillary
aboveground pipes and dispensing systems up to the first point of
isolation and all ancillary underground pipes and dispensing
systems connected to the aboveground containersto the first point
of isolation. Notwithstanding any other provision of this code to
the contrary, shipping containers, including railroad freight cars,
subject to federal regulation under the Federal Railroad Safety
Act, 49 U.S.C. §§20101-2015, as amended, including but not limited
to federal regulations promulgated thereunder at 49 CAR 172, 173 or
174, or subject to other federal law governing the transportation
of hazardous materials are not subject to any provision of this
article or of article thirty-one of this chapter. Notwithstanding
any other provision of this code to the contrary, barges or boats
subject to federal regulation under the United States Coast Guard,
United States Department of Homeland Security, including but not
limited to federal regulations promulgated at 33 CAR 1, et seq., or
subject to other federal law governing the transportation of
hazardous materials are not subject to any provision of this
article or of article thirty-one of this chapter.

(2) “Department” means the West Virginia Department of
Environmental Protection.

(3) “Nonoperational storage tank” means an emptyaboveground
storage tank in which fluids will not be deposited or from which
fluids will not be dispensed on or after the effective date of this
article.

(4) “Operator” means any person in control of, or having
responsibility for, the daily operation of an aboveground storage
tank.

(5) “Owner” means a person who holds title to, controls or
owns an interest in an aboveground storage tank, including owners
of tanks immediately preceding the discontinuation of a tank’s use.
“Owner” does not mean a person who holds an interest in a tank for
financial security, unless the holder has taken possession of and
operated the tank.

(6) “Person”, “persons” or “people” means any individual,
trust, firm, owner, operator, corporation or other legal entity,
including the United States government, an interstate commission or
other body, the state or any agency, board, bureau, office,
department or political subdivision of the state, but does not
include the Department of Environmental Protection.

(7) “Process vessel” means tanks, containers or other vessels
utilized in a facility in the manufacturing process through which
there is a steady, variable, recurring or intermittent flow of
materials. This does not include tanks used for storage of
materials prior to their introduction into the production process
or for the storage of finished products or by-products of the
production process.

(8) “Public groundwater supply source” means a primary source
of water supply for a public water system which is directly drawn
from a well, underground stream, underground reservoir, underground
mine or other primary source of water supplies which is found
underneath the surface of the state.

(9) “Public surface water supply source” means a primary
source of water supply for a public water system which is directly
drawn from rivers, streams, lakes, ponds, impoundments or other
primary sources of water supplies which are found on the surface of
the state.

(10) “Public surface water influenced groundwater supply
source” means a source of water supply from a public water system
which is directly drawn from an underground well, underground river
or stream, underground reservoir or underground mine, and the
quantity and quality of the water in that underground supply source
is heavily influenced, directly or indirectly, by the quantity and
quality of surface water in the immediate area.

(11) “Public water system” means;

(A) Any water supply or system which regularly supplies
or offers to supply water for human consumption through pipes or
other constructed conveyances, if serving at least an average of
twenty-five individuals per day for at least sixty days per year,
or which has at least fifteen service connections, and shall
include:

(i) Any collection, treatment, storage and distribution
facilities under the control of the owner or operator of the system
and used primarily in connection with the system; and

(ii) Any collection or pretreatment storage facilities not
under such control which are used primarily in connection with the
system.

(B) A public water system does not include a system which
meets all of the following conditions:

(i) Consists only of distribution and storage facilities (and
does not have any collection and treatment facilities);

(ii) Obtains all of its water from, but is not owned or
operated by, a public water system which otherwise meets the
definition;

(iii) Does not sell water to any person; and

(iv) Is not a carrier conveying passengers in interstate
commerce.

(12) “Release” means any spilling, leaking, emitting,
discharging, escaping, leaching or disposing of fluids from an
aboveground storage tank into groundwater, surface water or
subsurface soils. The term shall also include spilling, leaking,
emitting, discharging, escaping, leaching or disposing of fluids
from an aboveground storage tank into a containment structure or
facility that poses an immediate threat of contamination of the
soils, subsurface soils, surface water or groundwater: Provided,
That the overfill or spillage of up to 20 gallons of fluid during
the loading or unloading of liquids shall not be required to be
reported if the overflow or spillage is wholly contained within a
containment structure or facility, it is promptly cleaned up, and
no portion of the overfill or spillage escapes onto the ground or
into adjacent surface water.

(13) “Secondary containment” means a safeguard applied to one
or more tanks that prevents the discharge into the waters of the
state of the entire capacity of the largest single tank and
sufficient freeboard to contain precipitation. In order to qualify
as secondary containment, the barrier and containment field must be
sufficiently impervious to contain fluids in the event of a
release, and may include double-walled tanks, dikes, containment
curbs, pits or a drainage trench enclosures that safely confine the
release from a tank in a facility catchment basin or holding pond.(14) “Secretary” means the Secretary of the Department of
Environmental Protection, or his or her designee.

(15) “Source water protection area” for a public groundwater
supply source is the area within an aquifer that supplies water to
a public water supply well within a five-year time-of-travel, and
is determined by the mathematical calculation of the locations from
which a drop of water placed at the edge of the protection area
would theoretically take five years to reach the well.

(16) “Zone of critical concern” for a public surface water
supply is a corridor along streams within a watershed that warrant
more detailed scrutiny due to its proximity to the surface water
intake and the intake’s susceptibility to potential contaminants
within that corridor. The zone of critical concern is determined
using a mathematical model that accounts for stream flows, gradient
and area topography. The length of the zone of critical concern is
based on a five-hour time of travel of water in the streams to the
water intake, plus an additional 1/4 mile below the water intake.
The width of the zone of critical concern is 1,000 feet measured
horizontally from each bank of the principal stream and 500 feet
measured horizontally from each bank of the tributaries draining
into the principal stream.

(a) To assure protection of the water resources of the state,
the secretary shall compile an inventory of all aboveground storage
tanks in existence this state, regardless of whether it is an
operational or nonoperational storage tank on the effective date of
this article. The secretary shall prescribe an inventory and
registration form for this purpose within thirty days of the
effective date of the enactment of this article.

(b) At a minimum the inventory form shall identify the
ownership of the tank, tank location, date of installation if
known, type of construction, capacity and age of the tank, the type
and volume of fluid stored therein, and the identity of and
distance to the nearest groundwater public water supply intake
and/or nearest surface water downstream public water supply intake.
(c)If the inventoried tank is regulated under any existing
state or federal regulatory program, the owner of the tank shall be
required to provide the identifying number of any license,
registration or permit issued for the tank, and identify the
regulatory standards and requirements the tank is required to meet.

(d) Any aboveground storage tank placed into service on or
after the effective date of this section, but prior to the
establishment of a permit program, shall complete and submit an
inventory form with the secretary.

(e) Upon receipt of an inventory form, the secretary shall
determine whether the storage tank is required to meet the minimum
design, construction, inspection, secondary containment, leak
reporting and performance standards equivalent to or greater than
the standards and requirements established under an existing
license or permit issued for the individual storage tank, storage
tank farm or site on which the storage tank is located.

(f) The secretary may charge a reasonable fee to cover the
cost of maintaining and overseeing the inventory and registration
program. The fee may be set by emergency and legislative rules
proposed for promulgation in accordance with the provisions of
article three, chapter twenty-nine-a of this code.

(g) On and after October 1, 2014, it shall be unlawful for any
owner or operator to operate or use an aboveground storage tank
subject to this article which has not been properly registered or
for which any applicable registration fee has not been paid.

(a) The secretary shall promulgate for review and
consideration by the West Virginia Legislature as legislative rules
during the 2015 Regular Session of the West Virginia Legislature,
on all matters related to this article.

(b) To assure further protection of the water resources of the
state, the secretary shall develop a regulatory program for new and
existing aboveground storage tanks incorporating nationally
recognized tank standards such as those standards developed by the
American Petroleum Institute (“API”), the Steel Tank Institute
(“STI”) or comparable authorities, and taking into account the
size, location and contents of the tanks. At a minimum, the
program shall include the following:

(1) A requirement to submit a verified application for a
permit containing information as may be prescribed by the
secretary;

(2) Performance standards for design, construction,
installation, maintenance, corrosion detection and maintenance,
release detection and prevention and secondary containment to
ensure the structural integrity of the storage tank and the
secondary containment;

(3) Requirements for maintaining a leak detection system,
inventory control systems together with tank testing or a
comparable system or method designed to identify releases from
aboveground storage tanks in a manner consistent with the
protection of human health, safety, water resources and the
environment;

(4) Requirements for maintaining records of any monitoring or
leak detection system, corrosion prevention, inventory control
system or tank testing system;

(5) Requirements for early detection of releases and immediate
reporting of releases;

(6) Requirements for developing a corrective action plan to
expeditiously respond to any releases;

(7) Requirements for the closure of aboveground storage tanks
and remediation to prevent future releases of fluids or materials
to the state’s water resources;

(8) Requirements for certification of installation, removal,
retrofit, corrosion and other testing and inspection of aboveground
storage tanks, leak detection systems and secondary containment by
a qualified registered professional engineer regulated and licensed
by the State Board of Registration for Professional Engineers, or
by an individual certified to perform tank inspections by the
American Petroleum Institute, or by a person holding certification
under another program approved by the secretary;

(9) Requirements for life-cycle management of aboveground
storage tanks that include mitigation and corrosion prevention
plans that include but are not limited to:

(A) A life-cycle maintenance schedule for the use of
protective coatings and or other repair, rehabilitation, and
maintenance methods used for the preservation of aboveground
storage tanks;

(B) A process for ensuring that corrosion prevention and
mitigation is carried out according to corrosion prevention
industry standards adopted by the Secretary for aboveground storage
tanks that includes the use of industry trained and certified:

(i) Protective coatings personnel to carry out surface
preparation operations and coating application on any type of
substrate and or surface, but especially concrete and steel;

(ii) Cathodic protection experts for all aspects of corrosion
prevention projects requiring knowledge of the design,
installation, monitoring, or maintenance of a cathodic protection
system; and

(iii) Inspectors to ensure best practices and standards are
adhered to on a corrosion prevention and mitigation project;

(C) A plan to prevent environmental degradation that could
occur as a result of carrying out corrosion prevention and
mitigation including, but not limited to the careful handling and
containment of hazardous materials, not including the contaminant
within, removed from the interior and or exterior of an aboveground
storage tank; and

(D) Use of industry experts for consultation and direct to
determine whether to approve a corrosion prevention and mitigation
plan, or any part therein, the Secretary shall consult, and
interact directly with, corrosion industry experts specializing in
the training and certification of personnel to carry out corrosion
prevention and mitigation methods;

(10) The assessment of permit application and registration
fees as determined by the secretary;

(11) Permit issuance only after the application and any other
supporting documents have been submitted, reviewed and approved by
the secretary, and that permits may be issued with certain
conditions or contingencies;

(12) A requirement that any aboveground storage tank
maintenance work shall commence within six months from the date the
permit was issued and must be completed within one year of
commencement. If the work has not started or is not completed
during the stated time periods, the permit shall expire and a new
permit shall be required unless a written extension is granted by
the secretary. An extension may be granted only if the applicant
can demonstrate that the delay was not deliberate and that the
delay will not present harm to human health, safety, water
resources or the environment;

(13) A procedure for the administrative resolution of
violations including the assessment of administrative civil
penalties;

(14) A procedure for any person adversely affected by a
decision or order of the secretary relating to the aboveground
storage tank program to appeal to the Environmental Quality Board,
pursuant to the provisions of article one, chapter twenty-two-b of
this code;

(15) In coordination and cooperation with the Bureau for
Public Health and the Division of Homeland Security and Emergency
Management, create a process and procedure for identifying any
aboveground storage tanks which are located within a defined zone
of critical concern for a public water system’s surface water
intake or within a defined source water protection area for a
public water system’s groundwater intake, and determining whether
additional permit requirements and inspections should be imposed on
that tank or facility by requiring the issuance of any new permit
pursuant to this article, or by amending any existing permit which
may pertain to that tank or facility, under this chapter, or by any
other article of this chapter; and

(16) Requirements for maintaining written or electronic
records that log at least the following information for each
aboveground storage tank: tank numbers, additives, verifiable
content levels, deliveries, amounts and quantities, dispensing,
repairs and maintenance; and including the requirement that such
logs be signed by the owner or a designated responsible supervisor,
and be available for inspection upon request of the secretary.

§22-30-6. Annual inspection and certification.

(a) Every owner or operator of an aboveground storage tank
regulated herein shall have an annual inspection of each tank
performed by a qualified registered professional engineer or a
qualified person working under the direct supervision of a
registered professional engineer, regulated and licensed by the
State Board of Registration for Professional Engineers, or by an
individual certified to perform tank inspections by the American
Petroleum Institute, or by a person holding certification under
another program approved by the secretary. Every owner or operator
shall submit, on a form prescribed by the secretary, a
certification from the engineer that each tank, associated
equipment, leak detection system and secondary containment
structure meets the minimum standards established by this article
or by the secretary by rule.

(b) The certification form shall be submitted to the secretary
on or before January 1, 2015, and each year thereafter.

§22-30-7. Financial responsibility.

The secretary shall promulgate rules requiring owners and
operators to provide evidence of adequate financial resources to
undertake reasonable corrective action for releases of fluid from
aboveground storage tanks. The means of demonstrating adequate
financial responsibility may include, but not be limited to,
providing evidence of current insurance, guarantee, surety bond,
letter of credit, proof of assets, trust fund or qualification as
a self insurer.

§22-30-8. Corrective action.

(a) Prior to the effective date of the emergency and
legislative rules promulgated pursuant to the authority granted
under this article, the secretary is authorized to:

(1) Require the owner or operator to develop a preliminary
corrective action plans taking into consideration the types of
fluids and types of tanks on the premises;

(2) Require the owner or operator of an aboveground storage
tank to undertake prompt corrective action to protect human health,
safety, water resources or the environment from contamination
caused by a release; or

(3) Undertake immediate corrective action with respect to any
release or threatened release of fluid from an aboveground storage
tank when, in the judgment of the secretary, the action is
necessary to protect human health, safety, water resources or the
environment from contamination caused by a release.

(b) The corrective action undertaken or required by this
section shall be what may be necessary to protect human health,
water resources and the environment from contamination caused by a
release, including the ordered cessation or closure of a source of
contamination and the ordered remediation of a contaminated site.
The secretary shall use funds in the Protect Our Water Fund
established pursuant to this article for payment of costs incurred
for corrective action taken by the secretary in accordance with
this article. In undertaking corrective actions under this section
and in issuing orders requiring owners or operators to undertake
the actions, the secretary shall give priority to releases or
threatened releases of fluid from aboveground storage tanks that
pose the greatest threat to human health, water resources or the
environment.

(c) Following the effective date of rules promulgated pursuant
to this article, all actions or orders of the secretary shall be in
conformity with those rules. Following the effective date of the
rules, the secretary may undertake corrective action with respect
to any release or threatened release of fluid from an aboveground
storage tank only if, in the judgment of the secretary, the action
is necessary to protect human health, safety, water resources or
the environment from contamination, and one or more of the
following situations exists:

(1) If no person can be found within thirty days, or a shorter
period as may be necessary to protect human health, safety, water
resources and the environment, who is an owner or operator of the
aboveground storage tank at issue and who is capable of carrying
out the corrective action properly;

(2) A situation exists that requires immediate action by the
secretary under this section to protect human health, safety, water
resources or the environment;

(3) The cost of corrective action to be expended on an
aboveground storage tank exceeds the amount of resources that the
owner or operator can reasonably be expected to possess based on
the information required to be submitted pursuant to this article
and, considering the fluid being stored in the aboveground storage
tank in question, expenditures from the Protect Our WaterFund are
necessary to assure an effective corrective action; or

(4) The owner or operator of the tank has failed or refused to
comply with an order of the secretary under this article or of the
Environmental Quality Board under article one, chapter twenty-two-b
of this code to comply with appropriate corrective action measures
ordered by the secretary or the Environmental Quality Board.

(d) The secretary may draw upon the Protect Our Water Fund in
order to take action under subdivision (1) or (2), subsection (c)
of this section if the secretary has made diligent good-faith
efforts to determine the identity of the owner or operator
responsible for the release or threatened release and:

(1) The secretary is unable to determine the identity of the
owner or operator in a manner consistent with the need to take
timely corrective action; or

(2) The owner or operator determined by the secretary to be
responsible for the release or threatened release has been informed
in writing of the secretary’s determination and has been requested
by the secretary to take appropriate corrective action but is
unable or unwilling to take proper action in a timely manner.

(e) The written notice to the owner or operator must inform
the owner or operator that if it is subsequently found liable for
releases pursuant to this section, the owner or operator will be
required to reimburse the Protect Our Water Fund for the costs of
the investigation, information gathering, and corrective action
taken by the secretary.

(f) If the secretary determines that immediate response to an
imminent threat to human health, safety, water resources or the
environment is necessary to avoid substantial injury or damage
thereto, corrective action may be taken pursuant to this section
without the prior written notice required by subdivision (2),
subsection (d) of this section. In that case, the secretary must
give subsequent written notice to the owner or operator within
fifteen days after the action is taken describing the circumstances
that required the action to be taken and setting forth the matters
identified in subsection (e) of this section.

§22-30-9. Spill prevention response plan.

(a) Within 180 days of the effective date of this article,
each owner or operator of an aboveground storage tank shall submit
a spill prevention response plan for each aboveground storage tank.
Owners and operators of aboveground storage tanks shall file
updated plans required to be submitted by this section no less
frequently than every three years. Each plan shall be
site-specific, consistent with the requirements of this article,
and developed in consultation with Bureau for Public Health, county
and municipal emergency management agencies. The spill prevention
response plan shall at a minimum:

(1) Identify and describe the activity that occurs at the site
and identify applicable hazard and process information, including
a specific listing and inventory of all types of fluids stored,
amount of fluids stored, and wastes generated that are stored in
aboveground storage tanks at the facility. The plan shall include
the material safety data sheets (MSDS) required by the Occupational
Safety and Health Administration for all fluids in use or stored in
aboveground storage tanks at the facility. The material safety
data sheets must include the health hazard number identified by the
National Fire Protection Association. The plan shall also include
drawings of the aboveground storage tank facility, including the
locations of all drainage pipes and water outlets;

(2) Identify all facility-related positions with duties and
responsibilities for developing, implementing and maintaining the
facility’s plan. The plan shall describe in detail the chain of
command at the aboveground storage tank facility and list all
facility emergency coordinators and all known emergency response
contractors;

(3) Provide a preventive maintenance program that includes
monitoring and inspection procedures, including identification of
stress points, employee training programs and security systems.
The plan shall include a description of potential sources and areas
where spills and leaks may occur by drawings and plot plans and
shall identify specific spill prevention measures for those
identified areas;

(4) Detail the specific response that the aboveground storage
tank facility and contract emergency personnel shall take upon the
occurrence of any release of fluids from an aboveground storage
tank at the facility;

(5) Provide contact information obtained by the owner or
operator of the aboveground storage tanks from the county and
municipal emergency management agencies and the nearest downstream
public water supply intake, and designate the person or persons to
be notified in the event of a release from an aboveground storage
tank; and

(6) Provide the secretary with all other requested
information.

(b) Each owner of an aboveground storage tank with an approved
spill prevention response plan shall submit to the secretary a
revised plan or addendum to the plan in accordance with the
requirements of this article if any of the following occur:

(1) There is a substantial modification in design,
construction, operation or maintenance of any aboveground storage
tank or associated equipment, or there are other circumstances that
increase the potential for fires, explosions or releases of fluids;

(2) There is a substantial modification in emergency equipment
at the facility;

(3) There are substantial changes in emergency response
protocols at the aboveground storage tank facility;

(4) The plan fails in an emergency;

(5) The removal or the addition of any aboveground storage
tank; or

(6) Other circumstances occur about which the secretary
requests an update.

(c) The secretary shall approve the spill prevention response
plan or reject the plan and require modifications as may be
necessary and reasonable to assure the protection of the source
water of a public water system from a release of fluids from an
aboveground storage tank. If rejected, the owner of the
aboveground storage tank shall submit a revised plan to the
secretary for approval within thirty days of receipt of
notification of the secretary’s decision. Failure to comply with
a plan approved by the secretary pursuant to this section is a
violation of this article.

(d) Nothing contained in this section relieves the owner or
operator of an aboveground storage tank from his or her obligation
to report any release immediately to the department’s emergency
notification telephone number.

§22-30-10. Notice to local governments and water companies.

The owner or operator of an aboveground storage tank facility
shall provide as required by the secretary public notice to any
public water system where the facility is located within the
system’s identified groundwater supply’s Source Water Protection
Area or within the system’s surface water supply’s Zone of Critical
Protection, to the local municipality, if any, and to the county in
which the facility is located. The notice shall provide a detailed
inventory of the type and quantity of fluid stored in aboveground
storage tanks at the facility and the material safety data sheets
(MSDS) associated with the fluid in storage. The owner or operator
shall also provide as required by the secretary a copy of the spill
prevention response plan and any updates thereto, which have been
approved by the secretary pursuant to this act, to the applicable
public water systems and county and municipal emergency management
agencies.

§22-30-11. Required signage.

Every aboveground storage tank shall display the signage, if
any, required by the Occupational Safety and Health Administration;
the tank registration number, when issued by the secretary; and the
emergency contact number for the owner or operator of the tank and
the emergency contact number for the Department of Environmental
Protection’s Spill Reporting Hotline. For the purposes of this
section, the requirements for prominently posted signage shall be
specified in the rules proposed for promulgation by the secretary
pursuant to this article and article three, chapter twenty-nine-a
of this code.

§22-30-12. Aboveground Storage Tank Administrative Fund.

(a) The secretary shall collect annual registration fees from
owners or operators of each aboveground storage tank in an amount
to be promulgated in the legislative rules authorized by this
article to be used by the secretary to defray the costs of
administering this article: Provided, That facilities permitted
under the West Virginia Surface Coal Mining and Reclamation Act
that hold individual NPDES permits and approved Groundwater
Protection Plans are exempt from the registration fee. All
registration and permit fees and the net proceeds of all fines,
penalties and forfeitures collected under this article, including
accrued interest, shall be paid into a special revenue account,
hereby created within the State Treasury, designated the
“Aboveground Storage Tank Administrative Fund.”

(b) At the end of each fiscal year, any unexpended balance,
including accrued interest, on deposit in the Aboveground Storage
Tank Administrative Fund shall not be transferred to the general
revenue fund, but shall remain in the Aboveground Storage Tank
Administrative Fund for expenditure pursuant to this section.

§22-30-13. Protect Our Water Fund.

(a) Each owner or operator of an aboveground storage tank
located in this state shall pay an annual fee to establish a fund
to assure adequate response to leaking aboveground storage tanks.
The amount of fees assessed pursuant to this section shall be set
forth by rule. The fees must be sufficient to cover the regulatory
oversight and services to be provided by designated agencies,
including necessary technical and administrative personnel. The
proceeds of the assessment shall be paid into a special revenue
account, hereby created within the State Treasury, designated the
“Protect Our Water Fund,” The fund shall be administered by the
secretary. Expenditures from the fund shall be solely to respond
to leaking aboveground storage tanks, and are not authorized from
collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
eleven-b of this code: Provided, That for the fiscal years ending
June 30, 2014 and 2015, expenditures are authorized from
collections rather than pursuant to an explicit appropriation by
the Legislature. At the end of each fiscal year, any unexpended
balance, including accrued interest, on deposit in the Protect Our
Water Fund shall not be transferred to the general revenue fund,
but shall remain in the Protect Our Water Fund for expenditure
pursuant to this section.

(b) Each owner or operator of an aboveground storage tank
subject to a fee assessment under subsection (a) of this section
shall pay a fee based on the number of aboveground storage tanks he
or she owns or operates, as applicable. The secretary shall vary
the fees annually to a level necessary to produce a sufficient fund
at the beginning of each calendar year.

(c) At the end of each fiscal year, any unexpended balance,
including accrued interest, on deposit in the Protect Our Water
Fund shall not be transferred to the General Revenue fund, but
shall remain in the Protect Our Water Fund.

(d) The secretary may enter into agreements and contracts and
to expend the moneys in the fund for the following purposes:

(1) Responding to aboveground storage tank releases when,
based on readily available information, the secretary determines
that immediate action is necessary to prevent or mitigate
significant risk of harm to human health, safety, water resources
or the environment from contamination caused by a release of fluid
from aboveground storage tanks in situations for which no federal
funds are immediately available for the response, cleanup or
containment: Provided, That the secretary shall apply for and
diligently pursue all available federal funds at the earliest
possible time;

(2) Reimbursing any nonresponsible parties for reasonable
cleanup costs incurred with the authorization of the secretary in
responding to an aboveground storage tank release; or

(3) Reimbursing any nonresponsible parties for reasonable
costs incurred with the authorization of the secretary responding
to perceived, potential or threatened releases from aboveground
storage tanks.

(e) The secretary, through a cooperative agreement with
another state regulatory agency, in this or another state, may use
the fund to compensate the cooperating agency for expenses the
cooperating agency incurs in carrying out regulatory
responsibilities that agency may have pursuant to this article.

§22-30-14. Public access to information.

(a) The public shall have access to all documents and
information submitted to the agency, subject to the limitations
contained in the state Freedom of Information Act, article one,
chapter twenty-nine-b of this code. Records, reports or
information obtained from any persons under this article may be
disclosed to other officers, employees or authorized
representatives of this state or federal agency implementing the
provisions of this article or any other applicable law related to
releases of fluid from aboveground storage tanks that impact the
states water resources.

(b) A list of the potential sources of significant
contamination contained within the zone of critical concern as
provided by the Department of Environmental Protection, the Bureau
for Public Health and the Division of Homeland Security and
Emergency Management may be disclosed. The exact location of the
contaminants within the zone of critical concern is not subject to
public disclosure in response to a Freedom of Information Act
request under article one, chapter twenty-nine-b of this code.
However, the location, characteristics and approximate quantities
of potential sources of significant contamination within the zone
of critical concern shall be made known to one or more designees of
the public water utility, and shall be maintained in a confidential
manner by the public water utility. In the event of a chemical
spill, release or related emergency, information pertaining to any
spill or release of contaminant shall be immediately disseminated
to any emergency responders responding to the site of a spill or
release, and the general public shall be promptly notified in the
event of a chemical spill, release or related emergency.

§22-30-15. Inspections, monitoring and testing.

(a) For the purposes of developing or assisting in the
development of any rule, conducting any study, taking any
corrective action or enforcing any provision of this article, any
owner or operator of an aboveground storage tank shall, upon
request of the secretary:

(3) Permit the secretary, at all reasonable times, to inspect
and copy records relating to aboveground storage tanks; and

(4) Permit the secretary to have access to the aboveground
storage tanks for corrective action.

(b) For the purposes of developing or assisting in the
development of any rule, conducting any study, taking corrective
action or enforcing any provision of this article, the secretary
may:

(1) Enter at any time any establishment or other place where
an aboveground storage tank is located;

(2) Inspect and obtain samples of any fluid contained in an
aboveground storage tank from any person;

(3) Conduct monitoring or testing of the aboveground storage
tanks, associated equipment, contents or surrounding soils,
surface, water or groundwater; and

(4) Take corrective action as specified in this article.

(c) Each inspection shall be commenced and completed with
reasonable promptness.

(d) To ensure protection of the water resources of the state
and compliance with any provision of this article or rule
promulgated thereunder, the secretary shall inspect at least
annually any aboveground storage tank facility located within the
Zone of Critical Concern of a public water system with a public
surface water supply source or a public surface water influenced
groundwater supply source.

§22-30-16. Administrative orders; injunctive relief.

(a) When the secretary determines, on the basis of any
information, that a person is in violation of any requirement of
this article or the rules promulgated thereunder, the secretary may
issue an order stating with reasonable specificity the nature of
the violation and requiring compliance within a reasonable
specified time period, or the secretary may commence a civil action
in the circuit court of the county in which the violation occurred
or in the circuit court of Kanawha County for appropriate relief,
including a temporary or permanent injunction. The secretary may,
except as provided in subsection (b) of this section, stay any
order he or she issues upon application, until the order is
reviewed by the Environmental Quality Board.

(b) In addition to the powers and authority granted to the
secretary by this chapter to enter into consent agreements,
settlements, and otherwise enforce this chapter, the secretary
shall propose rules for legislative approval to establish a
mechanism for the administrative resolution of violations set forth
in this article through consent order or agreement as an
alternative to instituting a civil action.

§22-30-17. Civil and criminal penalties.

(a) Any person who fails to comply with an order of the
secretary issued under subsection (a), section sixteen of this
article within the time specified in the order is liable for a
civil penalty of not more than $25,000 for each day of continued
noncompliance.

(b) Any owner or operator of an aboveground storage tank who
knowingly fails to register or obtain a permit required by this
article for an aboveground storage tank or submits false
information pursuant to this article is liable for a civil penalty
not to exceed $10,000 for each aboveground storage tank that is not
registered or permitted or for which false information is
submitted.

(c) Any owner or operator of an aboveground storage tank who
fails to comply with any requirement of this article or any
standard promulgated by the secretary pursuant to this article is
subject to a civil penalty not to exceed $10,000 for each day of
violation.

(d) Any person who knowingly and intentionally violates any
provision of this article shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be confined in a regional jail for
a period of time not exceeding one year, and be fined an amount not
to exceed $25,000.

(e) Any person convicted of a second or subsequent willful
violation of subsection (d) of this section or knowingly and
willfully violates any provision of any permit, rule or order
issued under or subject to the provisions of this article is guilty
of a felony and, upon conviction, shall be imprisoned in a
correctional facility not less than one nor more than three years,
or fined not more than $50,000 for each day of violation, or both
fined and imprisoned.

(f) Any person may be prosecuted and convicted under the
provisions of this section notwithstanding that none of the
administrative remedies provided in this article have been pursued
or invoked against said person and notwithstanding that civil
action for the imposition and collection of a civil penalty or an
application for an injunction under the provisions of this article
has not been filed against such person.

(g) Where a person holding a permit is carrying out a program
of pollution abatement or remedial action in compliance with the
conditions and terms of the permit, the person is not subject to
criminal prosecution for pollution recognized and authorized by the
permit.

(h) Civil penalties are payable to the secretary. All moneys
collected under this section for civil fines collected under this
article shall be deposited into a restricted account known as the
“Protect Our Water Fund.” All money deposited into this account
shall be used by the secretary to solely to respond to leaking
aboveground storage tanks.

§22-30-18. Appeal to Environmental Quality Board.

Any person aggrieved or adversely affected by an order of the
secretary made and entered in accordance with the provisions of
this article may appeal to the Environmental Quality Board,
pursuant to the provisions of article one, chapter twenty-two-b of
this code.

§22-30-19. Duplicative enforcement prohibited.

No enforcement proceeding brought pursuant to this article may
be duplicated by an enforcement proceeding subsequently commenced
under some other article of this code with respect to the same
transaction or event, unless the subsequent proceeding involves the
violation of a permit or permitting requirement of other article.

§22-30-20. Reporting and accountability.

(a) Every year, the secretary shall submit a report to the
Joint Legislative Oversight Commission on State Water Resources and
the Joint Committee on Government and Finance which assesses the
effectiveness of this article and provides other information as may
be requested by the commission to allow it to assess the
effectiveness of this article, including without limitation the
secretary’s observations concerning all aspects of compliance with
this article and any legislative rules promulgated pursuant hereto,
the regulatory process, and any pertinent changes to federal rules
or regulations.

(b) The secretary shall keep accurate accounts of all receipts
and disbursements related to the administration of the Aboveground
Storage Tank Administrative Fund and shall make a detailed annual
report to the Joint Legislative Oversight Commission on State Water
Resources and the Joint Committee on Government and Finance
addressing the administration of the fund.

(c) The secretary shall keep accurate accounts of all receipts
and disbursements related to the administration of the Protect Our
Water Fund and shall make a specific annual report to the Joint
Legislative Oversight Commission on State Water Resources and the
Joint Committee on Government and Finance addressing the
administration of the fund.

§22-30-21. Interagency cooperation.

(a) In implementation of this article, the secretary shall
coordinate with the Department of Health and Human Resources, the
West Virginia Public Service Commission and local health
departments to ensure the successful planning and implementation of
this act, including consideration of the role of those agencies in
providing services to owners and operators of aboveground storage
tanks and public water systems.

(b) The secretary shall also coordinate with state and local
emergency response agencies to prepare and issue appropriate
emergency response plans to facilitate a coordinated emergency
response and incident command and communication between the owner
or operator of the aboveground storage tank, the state and local
emergency response agencies and the affected public water system.

(c) The secretary shall also coordinate with the State Fire
Marshal in addressing the periodic inspection of local fire
departments to include a requirement for inspectors to examine and
identify the status of National Incident Management System fire
department personnel training.

§22-30-22. Imminent and substantial danger.

(a) Notwithstanding any other provision of this chapter to the
contrary, upon receipt of evidence that an aboveground storage tank
may present an imminent and substantial danger to human health,
water resources or the environment, the secretary may bring suit on
behalf of the State of West Virginia in the Circuit Court of
Kanawha County against any owner or operator of an aboveground
storage tank who has contributed or who is contributing to imminent
and substantial danger to public health, safety, water resources or
the environment to order the person to take action as may be
necessary to abate the situation and protect human health, safety,
water resources and the environment from contamination caused by a
release of fluid from an aboveground storage tank.

(b) Upon receipt of information that there is any aboveground
storage tank that presents an imminent and substantial danger to
human health, safety, water resources or the environment, the
secretary shall provide immediate notice to the appropriate state
and local government agencies and any affected public water system.
In addition, the secretary shall require notice of any danger to be
promptly posted at the aboveground storage tank facility containing
the aboveground storage tank at issue.

§22-30-23. Promulgation of rules.

The secretary shall promulgate emergency and legislative rules
as necessary to implement the provisions of this article in
accordance with the provisions of article three, chapter
twenty-nine-a of this code.

§22-30-24. Powers and duties of secretary.

(a) In addition to the powers and duties prescribed in this
chapter or otherwise provided by law, the secretary has the
exclusive authority to perform all acts necessary to implement this
article.

(b) The secretary may receive and expend money from the
federal government or any other sources to implement this article.

(c) The secretary may revoke any registration, authorization
or permit for a violation of this article or the rules promulgated
hereunder

(d) The secretary may issue orders, assess civil penalties,
institute enforcement proceedings and prosecute violations of this
article as necessary.

(e) The secretary, in accordance with this article, may order
corrective action to be undertaken, take corrective action or
authorize a third party to take corrective action.

(f) The secretary may recover the costs of taking corrective
action, including costs associated with authorizing third parties
to perform corrective action. Costs may not include routine
inspection and administrative activities not associated with a
release.

§22-30-25. Scope of article; waiving additional permitting
requirements for certain categories of aboveground
storage tanks; establishing a process for granting
waivers for additional categories of ground storage
tanks, by legislative rule, upon verification that
the category of tanks are regulated under
comparable or more rigorous protective state or
federal standards.

(a) While all aboveground storage tanks shall be required to
participate in the inventory and registration process set forth in
section four of this article, the following categories of
containers and tanks shall not be required to be permitted under
section five of this article, either because they do not represent
a substantial threat of contamination, or they are currently
regulated under standards which meet or exceed the protective
standards and requirements set forth in this article:

(4) A pipeline facility, including gathering lines, regulated
under the Natural Gas Pipeline Safety Act of 1968 or the Hazardous
Liquid Pipeline Safety Act of 1979, or an intrastate pipeline
facility regulated by the West Virginia Public Service Commission
or otherwise regulated under any state law comparable to the
provisions of either the Natural Gas Pipeline Safety Act of 1968 or
the Hazardous Liquid Pipeline Safety Act of 1979;

(6) A mobile tank, truck or rail car that is located on a site
for less than sixty consecutive calendar days;

(7) Liquid traps or associated gathering lines related to oil
or gas production and gathering operations;

(8) A surface impoundment, pit, pond or lagoon;

(9) Above ground storage tanks for which spill prevention,
control, and countermeasure plans are required by the Environmental
Protection Agency (EPA) under 40 CFR part 112 [oil pollution
prevention], unless located within a zone of critical protection.

(b) The Department of Environmental Protection may designate,
by legislative rule, additional categories of aboveground storage
tanks which for which an individual aboveground storage tank permit
may be waived, after confirming that the tank is regulated under an
existing state or federal regulatory permit or enforceable standard
which includes, but is not limited to, the following:

(1) Secondary containment with an impermeable base, which is
sufficient to fully contain the contents of the tank or the
contents of the largest tank in the group of tanks in the event of
a leak from spilling out onto the ground or adjacent surface water;

(2) Spill prevention, leak detection and control and
inspection requirements which meet or exceed the standards
established by the article or by rules promulgated thereunder;

(3) Regular inspections and routine integrity testing
requirements which are equally protective to the requirements
established pursuant to this article or any rules promulgated
thereunder; and

(4) Emergency response and notification requirements which are
at least as prompt and comprehensive as the emergency response and
notification requirements established by this article or any rules
promulgated thereunder.

(c) In lieu of requiring a separate permit issued under this
section, the secretary may adopt rules that would allow the
requirements of this article to be incorporated into, and enforced
through, the state-only portion of a National Pollutant Discharge
Elimination System (NPDES) permit, a permit under Article 6 or 6A
of this chapter or a Spill Prevention Control and Countermeasure
plan submitted to and approved by the secretary.

(d) If the above ground storage tank or tanks for a location
are to be regulated pursuant to a general NPDES permit or an
individual NPDES permit, the secondary containment, spill
prevention, leak detection and control requirements, inspection
requirements, reporting requirements and routine integrity testing
requirements for that tank or tanks are to be specifically set
forth as enforceable permit conditions and requirements.

ARTICLE 31. THE PUBLIC WATER SUPPLY PROTECTION ACT.

§22-31-1. Short title.

This article may be known and cited as the Public Water Supply
Protection Act.

§22-31-2. Legislative findings.

(a) The West Virginia Legislature finds that it is in the
public policy of the State of West Virginia to protect and conserve
the water resources which are relied upon by the state and its
citizens. The state’s water resources are vital natural resources
that are essential to maintain, preserve and promote human health,
quality of life and economic vitality of the state.

(b) The West Virginia Legislature further finds that it is the
public policy of the state that clean, uncontaminated water be
available for its citizens who are dependent on clean water as a
basic need for survival, and who rely on the assurances from public
water systems and the government that the water is safe to consume.

(c) The West Virginia Legislature further finds that it is the
public policy of the state that clean, uncontaminated water be
available to its businesses and industries that rely on water for
their economic survival, and the wellbeing of their employees.
These include hospitals and the medical industry, schools and
educational institutions, the food and hospitality industries, the
tourism industry, manufacturing, coal, natural gas and other
industries. Businesses and industries searching for places to
locate or relocate consider the quality of life for their employees
as well as the quality of the raw materials such as clean water.

(d) The Legislature further finds that large quantities of
fluids are stored in aboveground storage tanks, below ground
storage tanks, in impoundments and other locations which pose a
threat of potential contamination to surface waters and
groundwaters which are relied upon as primary sources of public
water supplies in the state. Emergency situations involving these
fluids can and will arise that may present a hazard to human
health, safety, the water resources, the environment and the
economy of the state.

(e) It is important that the public water systems, the
responding emergency providers and regulatory inspectors and
personnel require complete and accurate information regarding the
volume, identity, characteristics and qualities of each potential
source of significant contamination to efficiently and accurately
anticipate and respond to any associated threat to the public posed
by a leak or spill event.

(f) The Legislature also finds it reasonable and appropriate
to impose additional regulatory oversight and reporting
requirements for potential contaminants which are in close
proximity to a public water intake, due to the sudden and
devastating impact that potential contaminants in that zone pose to
a public water’s system’s critical source of supply.

§22-31-3. Definitions.

For the purposes of this article:

(1) “Potential source of significant contamination” means a
facility or activity that store, uses or produces compounds with
potential for significant contaminating impact if released into the
source water of a public water supply.

(2) “Public water system” means;

(A) Any water supply or system which regularly supplies or
offers to supply water for human consumption through pipes or other
constructed conveyances, if serving at least an average of
twenty-five individuals per day for at least sixty days per year,
or which has at least fifteen service connections, and shall
include:

(i) Any collection, treatment, storage and distribution
facilities under the control of the owner or operator of the system
and used primarily in connection with the system; and

(ii) Any collection or pretreatment storage facilities not
under such control which are used primarily in connection with the
system.

(B) A public water system does not include a system which
meets all of the following conditions:

(i) Consists only of distribution and storage facilities (and
does not have any collection and treatment facilities);

(ii) Obtains all of its water from, but is not owned or
operated by, a public water system which otherwise meets the
definition;

(iii) Does not sell water to any person; and

(iv) Is not a carrier conveying passengers in interstate
commerce.

(4) “Public groundwater supply source” means a primary source
of water supply for a public water system which is directly drawn
from a well, underground stream, underground reservoir, underground
mine or other primary source of water supplies which is found
underneath the surface of the state.

(5) “Public surface water supply source” means a primary
source of water supply for a public water system which is directly
drawn from rivers, streams, lakes, ponds, impoundments or other
primary sources of water supplies which are found on the surface of
the state.

(6) “Public surface water influenced groundwater supply
source” means a source of water supply from a public water system
which is directly drawn from an underground well, underground river
or stream, underground reservoir or underground mine, and the
quantity and quality of the water in that underground supply source
is heavily influenced, directly or indirectly, by the quantity and
quality of surface water in the immediate area.

(7) “Zone of Critical Concern” for a public surface water
supply is a corridor along streams within a watershed that warrant
more detailed scrutiny due to its proximity to the surface water
intake and the intake’s susceptibility to potential contaminants
within that corridor. The Zone of Critical Concern is determined
using a mathematical model that accounts for stream flows, gradient
and area topography. The length of the Zone of Critical Concern is
based on a five-hour time of travel of water in the streams to the
water intake, plus an additional 1/4 mile below the water intake.
The width of the Zone of Critical Concern is 1,000 feet measured
horizontally from each bank of the principal stream and 500 feet
measured horizontally from each bank of the tributaries draining
into the principal stream.

§22-31-4. Inventory of potential sources of significant
contamination in a Zone of Critical Concern;
registration; permitting; and notice.

(a) To assure protection of the water resources of the state,
the secretary, working in collaboration with the Bureau of Public
Health and the Division of Homeland Security and Emergency
Management, shall compile an inventory of all potential sources of
significant contamination contained within a public water system’s
Zone of Critical Concern for all public water systems whose source
of supply is obtained from a surface water supply source or a
surface water influenced groundwater supply source.

(b) If the secretary shall determine that a designated
potential significant source of contamination is not currently
permitted and subject to regulation by the secretary under one or
more articles of this chapter, and the secretary determines that
the public interest in protecting the public drinking waters of the
state warrant additional regulation and inspection of the site to
protect the public interests, the secretary may require the owner
and operator of that facility to register and obtain a permit for
its location pursuant to the provisions of this article.

(c) Within sixty days of the date receiving notice from the
secretary of the facility’s obligation to register pursuant to this
article, the owner or operator shall register the location pursuant
to the provisions of this section.

(d) The secretary shall prescribe a registration form for this
purpose within thirty days of the effective date of the enactment
of this article. Any potential significant sources of
contamination within a public water system’s defined Zone of
Critical Concern which are required to register with the Department
of Environmental Protection pursuant to this section shall do so
within sixty days from the receiving notice of their obligation to
register.

(e) Any potential source of significant contamination placed
into service on and after the effective date of this section, but
prior to the establishment of a permit program, may be required to
register by the secretary at any time.

(f) The secretary may charge a reasonable fee to cover the
cost of the registration and permitting program. The fee may be
set by emergency and legislative rules proposed for promulgation in
accordance with the provisions of article three, chapter
twenty-nine-a of this code: Provided, That facilities permitted
under the West Virginia Surface Coal Mining and Reclamation Act
that hold individual NPDES permits and approved Groundwater
Protection Plans are exempt from the fees under this section.

§22-31-5. Promulgation of rules.

The secretary shall promulgate emergency and legislative rules
as necessary to implement the provisions of this article in
accordance with the provisions of article three, chapter
twenty-nine-a of this code.

§22-31-6. Powers and duties of secretary.

(a) In addition to the powers and duties prescribed in this
chapter or otherwise provided by law, the secretary has the
exclusive authority to perform all acts necessary to implement this
article.

(b) The secretary is authorized to utilize his or her
authority under the West Virginia Water Pollution Control Act to
require appropriate permitting and any other conditions or
limitations to assure protection of water intakes in zones of
critical concern.

(c) The secretary may receive and expend money from the
federal government or any other sources to implement this article.

(d) The secretary may revoke any registration, authorization
or permit for a violation of this article or the rules promulgated
hereunder.

(e) The secretary may issue orders, assess civil penalties,
institute enforcement proceedings and prosecute violations of this
article as necessary.

(f) The secretary, in accordance with this article, may order
corrective action to be undertaken, take corrective action or
authorize a third party to take corrective action.

(g) The secretary may recover the costs of taking corrective
action, including costs associated with authorizing third parties
to perform corrective action. Costs may not include routine
inspection and administrative activities not associated with a
release.

§22-31-7. Public access to information.

(a) Subject to the exemptions listed in section four, article
one, chapter twenty-nine-b of this code, the public shall have
access to all documents and information submitted to the agency in
accordance with this section pursuant to the state Freedom of
Information Act. Records, reports or information obtained from any
persons under this article may be disclosed to other officers,
employees or authorized representatives of this state or the United
States Environmental Protection Agency or of this state if the
officers, employees or authorized representatives are implementing
the provisions of this article or any other applicable law related
to releases of contaminants tanks that impact the state’s water
resources.

(b) In submitting data under this article, a person required
to provide the data may designate the data that he or she believes
is entitled to protection under this section and may submit the
designated data separately from other data submitted under this
article. A designation under this subsection shall be made in
writing and in a manner as the secretary may prescribe.

(c)The Department of Environmental Protection shall provide a
copy of the compiled list of contaminants in each Zone of Critical
Concern to the affected public water system, the Bureau for Public
Health, the Department of Environmental Protection and the Division
of Homeland Security and Emergency Management. This will enable
those entities to possess a compiled list of the types, quantities,
characteristics and locations of all of the known potential
contaminants within the Zone of Critical Concern for each public
water supply. If any of the submitted information is requested to
be kept confidential and good cause is found to grant the request,
for reasons of security or other legitimate public interest
concern, the protected information shall be redacted from public
view and kept confidential, and it shall not be subject to public
release in response to a Freedom of Information Act request under
made under chapter twenty-nine-b of this code.

§22-31-8. Inspections, monitoring and testing.

(a) For the purposes of developing or assisting in the
development of any rule, conducting any study, taking any
corrective action or enforcing any provision of this article, any
owner or operator of designated site of potential contamination
within a Zone of Critical Concern shall, upon request of the
secretary:

(1) Furnish information relating to the site and potential
contaminants on the site, their aboveground and underground storage
tanks, their associated equipment and contents;

(2) Conduct reasonable monitoring or testing;

(3) Permit the secretary, at all reasonable times, to inspect
and copy records relating to the facilities and equipment used to
store or contain the potential contaminants; and

(4) Permit the secretary to have access to the site for
corrective action.

(b) For the purposes of developing or assisting in the
development of any rule, conducting any study, taking corrective
action or enforcing any provision of this article, the secretary
may:

(1) Enter at any time any establishment or other place where
on the site or where the potential contaminant is located;

(2) Inspect and obtain samples of any fluid contained or
stored on the site from any person;

(3) Conduct monitoring or testing of the site and any
associated aboveground storage tanks, underground storage tanks,
associated equipment, contents or surrounding soils, surface, water
or groundwater; and

(4) Take corrective action as specified in this article.

(c) Each inspection shall be commenced and completed with
reasonable promptness.

(d) To ensure protection of the water resources of the state
and compliance with any provision of this article or rule
promulgated thereunder, the secretary shall inspect at least
annually any designated site of potential contamination which is
located within the Zone of Critical Concern for a public water
system’s surface water intake.

(e) Due to the potential impact of contaminants within a Zone
of Critical Concern on public drinking water supplies, whenever
there is an apparent spill of a chemical or substance within a zone
of critical concern for a public water system, the Director of the
Bureau for Public Health, and his or her representatives or
designees, shall have the same right to enter, inspect and conduct
sampling and monitoring at any site that is extended by this
article to the Department of Environmental Protection.

Because of the potential public health impact of pollution to
downstream public water intakes in a watershed basin designated in
an area of critical concern, on and after September 1, 2014, any
permittee which presently holds a National Pollutant Discharge
Elimination System (NPDES) general permit pursuant to the Federal
Water Pollution Control Act for a site which is located within any
public water system’s Zone of Critical Concern may be required by
the secretary to apply for and hold an individual permit under that
Act. Any general NPDES permit held currently under that act shall
remain in effect until the individual NPDES permit is either issued
or denied.

§22-31-10. Civil and criminal penalties.

(a) Any person who fails to comply with an order of the
secretary issued pursuant to this article the time specified in the
order is liable for a civil penalty of not more than $25,000 for
each day of continued noncompliance.

(b) Any owner or operator of a site designated as a potential
source of significant contamination within a Zone of Critical
Concern above a public water intake who knowingly fails to register
or obtain a permit for an aboveground storage tank or submits false
information pursuant to this article is liable for a civil penalty
not to exceed $10,000 for each aboveground storage tank that is not
registered or permitted or for which false information is
submitted.

(c) Any owner or operator of a site designated as a potential
source of significant contamination within a Zone of Critical
Concern above a public water intake who fails to comply with any
requirement of this article or any standard promulgated by the
secretary pursuant to this article is subject to a civil penalty
not to exceed $10,000 for each day of violation.

(d) Any person who knowingly and intentionally violates any
provision of this article shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be confined in a regional jail for
a period of time not exceeding one year, and be fined an amount not
to exceed $25,000.

(e) Any person convicted of a second or subsequent willful
violation of subsections (b) or (c) of this section or knowingly
and willfully violates any provision of any permit, rule or order
issued under or subject to the provisions of this article is guilty
of a felony and, upon conviction, shall be imprisoned in a
correctional facility not less than one nor more than three years,
or fined not more than $50,000 for each day of violation, or both
fined and imprisoned.

(f) Any person may be prosecuted and convicted under the
provisions of this section notwithstanding that none of the
administrative remedies provided in this article have been pursued
or invoked against said person and notwithstanding that civil
action for the imposition and collection of a civil penalty or an
application for an injunction under the provisions of this article
has not been filed against such person.

(g) Where a person holding a permit is carrying out a program
of pollution abatement or remedial action in compliance with the
conditions and terms of the permit, the person is not subject to
criminal prosecution for pollution recognized and authorized by the
permit.

§22-31-11. Appeal to Environmental Quality Board.

A person aggrieved or adversely affected by an order of the
secretary made and entered in accordance with the provisions of
this article may appeal to the Environmental Quality Board,
pursuant to the provisions of article one, chapter twenty-two-b of
this code.

§22-31-12. Public Water System Supply Study Commission.

(a) There is hereby established the “Public Water System
Supply Study Commission” which is created for the purpose of
studying and reporting back to the Joint Committee on Government
and Finance on the following subject matters:

(1) A review and assessment of the effectiveness and the
quality of information contained in updated source water protection
plans required for certain public water systems by the provisions
of section nine-c, article one, chapter sixteen of this code;

(2) A review and assessment of the effectiveness of
Legislation enacted during the 2014 Regular Session of the West
Virginia Legislature, as it pertains to assisting public water
systems in identifying and reacting or responding to identified
potential sources of significant contamination, and increasing
public awareness and public participation in the emergency planning
and response process;

(3) The extent of available financing and funding alternatives
which are available to existing public water systems to pursue
projects which are designed to create alternate sources of supply
or increased stability of supply in the event of a spill, release
or contamination event which impairs the water system’s primary
source of supply; and

(4) Any recommendations or suggestions the Study Commission
may offer to improve the infrastructure of existing public water
systems, to provide safe and reliable sources of supplies, and to
pursue other measures designed to protect the integrity of public
water service.

(b) The study commission shall consist of the following eleven
members, who shall be appointed and comprised as follows:

(1) Four members appointed by the Governor, one of whom shall
be a professional engineer experienced in the design and
construction of public water systems; one of whom shall be a
hydrologist or other expert experienced in determining the flow
characteristics of rivers and streams; one of whom shall be an
environmental toxicologist or other public health expert who is
familiar the impact of contaminants on the human body; and one
citizen representative;

(2) One representative designated by the Rural Water
Association;

(3) One representative designated by the Municipal League;

(4) The Secretary of the Department of Environmental
Protection or his or her designee;

(5) The Commissionesr of the Bureau for Public Health or his
or her designee;

(6) The Chairman of the Public Service Commission or his or
her designee;

(7) One nonvoting member appointed by the President of the
Senate; and

(8) One nonvoting member appointed by the Speaker of the House
of Delegates.

(c) Reports by the Commission shall be submitted to the Joint
Committee on Government and Finance on or before December 15 of
each year, beginning December 15, 2014.”.